Skip navigation
PYHS - Header
× You have 2 more free articles available this month. Subscribe today.

Fourth Circuit: State’s Failure to Plead Procedural Default Results in De Novo Review on Merits; Prosecutor’s Comments to Jury to Send ‘Societal Message’ Denied Defendant Fair Trial, Habeas Relief Warranted

by Dale Chappell

THE U.S. COURT OF APPEALS FOR THE Fourth Circuit held that a prosecutor’s comments were so improper that they violated a defendant’s constitutional right to due process and habeas relief was warranted.

Charles Plymail was convicted of second-degree sexual assault in 1993, after a jury found him guilty, and was sentenced to 15 years to life in prison. And then his case sat on direct appeal for more than 20 years. Finally, in 2015, the West Virginia Supreme Court of Appeals affirmed his conviction, finding that the delay did not provide grounds for reversal. But that issue was only one of Plymail’s challenges. What would ultimately undo his unconstitutional conviction was something the prosecutor said to the jury.

The case was one about consensual sex between Plymail and a woman that ended with an altercation. Plymail said the woman bit him during sex, and he slapped her. The woman said she had consensual sex with Plymail but refused further sexual contact when pressed by Plymail, who became angry and slapped her. At trial, defense counsel told the jury that the accuser was an “angry, offensive” woman and that it’s “dangerous to even look at a woman today because she can shout ‘rape’ ... and society tends to believe the woman.”

Instead of objecting to those improper remarks, the prosecutor gave the jury a 12-minute speech on how “trickster lovers” like Plymail must be convicted. Calling him “masochistic,” the prosecutor stated—without any evidence—that “seventy percent of rapes go free” without being charged. He declared that rape charges are “not easy to make” because victims must testify with all the burdens that entails while “all the rights go to the defendant.” He urged the jury to “send a message” and that they “must think about the message” with a guilty verdict. If they let Plymail go free, he said, it would “send a message so loud and clear to men on dates who have the tendency of the sweet tooth of sadomasochism.” Staying on message to the very end, he closed by imploring the jury to find Plymail “guilty … for all of us, for womankind, for all of us.”

Due to changing lawyers multiple times, courts taking too long to rule on motions, and Plymail’s health issues, it took over 20 years for the West Virginia Supreme Court of Appeals to hear his appeal. The court found that Plymail had waived his claim on the prosecutor’s comments by not objecting to the error at the right time. However, the court neglected to rule on whether the “plain error” standard would have allowed the court to still hear the claim, when it affirmed his conviction.

In 2014, Plymail filed his habeas corpus petition in the U.S. District Court for the Southern District of West Virginia based on the prosecutorial misconduct claim, among others. After several more years in the federal courts, Plymail filed for summary judgment in his favor, and the State cross-moved for summary judgment. The district court granted the State’s motion and dismissed Plymail’s petition. Plymail appealed, arguing that the prosecutor’s closing statement denied him due process.

On appeal, the Fourth Circuit first had to address issues of jurisdiction and mootness. By the time of oral arguments, Plymail had already been unconditionally released from prison but still potentially faced a separate set of charges.

The Court observed that under 28 U.S.C. § 2254(a) courts may only rule on an application for habeas relief if the person is “in custody.” However, a jurisdiction determination focuses on the time an action is filed. “[O]nce the federal jurisdiction has attached in the District Court, it is not defeated by the release of the petitioner prior to completion of proceedings on such application.” Carafas v. LaVallee, 391 U.S. 234 (1968). Thus, because Plymail was still incarcerated at the time he petitioned for habeas relief, the Court maintained jurisdiction.

The Court noted that since habeas proceedings challenge a person’s detention, it would seem that the person’s release renders the habeas petition moot. However, the Court observed that the U.S. Supreme Court has instructed otherwise, stating that certain “collateral consequences” of a conviction bars a habeas petition from becoming moot. Carafas. The Supreme Court instructed that the “possibility of consequences collateral to the imposition of sentence is sufficiently substantial to justify our dealing with the merits.” Pollard v. United States, 352 U.S. 354 (1957). Collateral consequences are presumed. See Sibron v. State of N.Y., 392 U.S. 40 (1968).   

Turning to the present case, the Court determined that Plymail’s habeas petition wasn’t moot. It explained that the conviction at issue could be used to impeach his testimony at a future proceeding, and it could also be used against him in a future proceeding to trigger a persistent felony offender prosecution. Evitts v. Lucey, 469 U.S. 387 (1985). Thus, the case is not moot, the Court ruled.  

The next hurdle was one enacted by Congress under the Antiterrorism and Effective Death Penalty Act (“AEDPA”) of 1996 to curb frivolous habeas petitions. This bars a federal court from granting habeas relief unless the state court’s decision “was contrary to, or involved an unreasonable application of, clearly established Federal law’ or ‘was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” Winston v. Kelly, 592 F.3d 535 (4th Cir. 2010) (quoting 28 U.S.C. § 2254(d)).

Because the state court found that Plymail had waived the prosecutorial-misconduct claim for failure to object when the comments in question were made, the Fourth Circuit found the claim was procedurally-defaulted. Ordinarily, this would preclude a review of the merits of the case under any standard. See Martinez v. Ryan, 566 U.S. 1 (2012). But the general rule barring review of procedurally-defaulted claims “is not a jurisdictional one.” Yeatts v. Angelone, 166 F.3d 255 (4th Cir. 1999). The Court explained that procedural default is an affirmative defense that must be pled, or the right to assert it is lost. Gray v. Netherland, 518 U.S. 152 (1996). Thus, the Court determined that since the State failed to argue procedural default in federal court, it waived this affirmative defense.

The Court then explained that had the State pled procedural default in the U.S. district court, that would have barred the Court from considering the merits of Plymail’s claim. See Martinez. Additionally, had the state court resolved his claim on the merits, the Court would’ve been required to review the claim under the deferential § 2254(d) standard of review. See Winston. Consequently, the Court stated that it was free to review the claim de novo, determining only if there was constitutional error. See Hudson v. Hunt, 235 F.3d 892 (4th Cir. 2000).

The Court stated that the prosecutor’s remarks violate due process if they “were so improper to deny Plymail a fundamentally fair trial.” It added that this “high bar” requires him to show two things: (1) the remarks were plainly improper and (2) that they so prejudiced Plymail’s “substantial rights” that he was denied a fair trial. United States v. Saint Louis, 889 F.3d 145 (4th Cir. 2018); see also Darden v. Wainwright, 477 U.S. 168 (1986).

The Court explained that prosecutors must obtain convictions based on the evidence as applied to the elements of the offense charged, not “based on prejudice or passions.” This edict is violated when prosecutors implore juries to convict in order to “send a message to the community.” See United States v. Pupo, 841 F.2d 1235 (4th Cir. 1988) (en banc). Prosecutors similarly violate the edict when they ask jurors to put themselves in the victim’s shoes. See United States v. Hall, 979 v. F.3d 1107 (6th Cir. 2020); Gov’t of the Virgin Is. v. Mills, 821 F.3d 448 (3d Cir. 2016); United States v. Palma, 473 F.3d 899 (8th Cir. 2007).

The Court stated that the prosecutor in the present case “focused the rebuttal argument on sending a message to the community and protecting the jurors’ own children from sexual assault.” That is, he exhorted the jury throughout his rebuttal to send a broad “societal message” by finding Plymail guilty. Therefore, the Court concluded that the statements were “highly improper,” thereby satisfying the first prong of the denial of due process test.

Turning to the prejudice prong, the Court ruled that the prosecutor’s comments did indeed prejudice Plymail’s substantial rights and resulted in denying him a fair trial. There was a complete absence of evidence in the case and came down to a credibility determination between Plymail and the victim. The Court explained that the prosecutor’s comments fixated the jury “on matters extraneous to the truth of this case.” In doing so, the comments “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Donnelly.  

Thus, the Court held that the district court erred in granting summary judgment on Plymail’s denial of due process claim.

Accordingly, the Court reversed the dismissal of Plymail’s habeas petition. See: Plymail v. Mirandy, 2021 U.S. App. LEXIS 28846 (4th Cir. 2021).

Writer’s note: This case is a great example of how the AEDPA has barred federal courts from granting relief in cases where state prosecutors have blatantly violated the constitutional rights of defendants. Here, the Court noted that if the State had raised the procedural-default defense, it would’ve been “barred from considering the merits of this claim.” That means Plymail’s conviction, as unconstitutional as it was because of the prosecutor’s misconduct, would have had to stand because of the AEDPA. Fortunately for Plymail, the State failed to raise the procedural-default defense, so the Court was able to undo Plymail’s conviction. Unfortunately, the AEDPA nearly always gives the state an easy win in federal habeas court, by tying the hands of federal judges in these types of cases.

As a digital subscriber to Criminal Legal News, you can access full text and downloads for this and other premium content.

Subscribe today

Already a subscriber? Login

Related legal cases

Plymail v. Mirandy

United States v. Hall

Gov’t of the Virgin Is. v. Mills

Martinez v. Ryan

United States Supreme Court
566 U.S. ___; 132 S.Ct. 1309; 182 L.Ed.2d 272


No. 10–1001

Argued October 4, 2011

Decided March 20, 2012


FN* The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

Arizona prisoners may raise claims of ineffective assistance of trial counsel only in state collateral proceedings, not on direct review. In petitioner Martinez’s first state collateral proceeding, his counsel did not raise such a claim. On federal habeas review with new counsel, Martinez argued that he received ineffective assistance both at trial and in his first state collateral proceeding. He also claimed that he had a constitutional right to an effective attorney in the collateral proceeding because it was the first place to raise his claim of ineffective assistance at trial. The District Court denied the petition, finding that Arizona’s preclusion rule was an adequate and independent state-law ground barring federal review, and that under Coleman v. Thompson, 501 U. S. 722, the attorney’s errors in the postconviction proceeding did not qualify as cause to excuse the procedural default. The Court of Appeals for the Ninth Circuit affirmed.


1. Where, under state law, ineffective-assistance-of-trial-counsel claims must be raised in an initial-review collateral proceeding, a procedural default will not bar a federal habeas court from hearing those claims if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective. Pp. 5–14.

(a) Given that the precise question here is whether ineffective assistance in an initial-review collateral proceeding on an ineffective-assistance-at-trial claim may provide cause for a procedural default in a federal habeas proceeding, this is not the case to resolve the question left open in Coleman: whether a prisoner has a constitutional right to effective counsel in initial-review collateral proceedings. However, to protect prisoners with potentially legitimate ineffective-assistance claims, it is necessary to recognize a narrow exception to Coleman’s unqualified statement that an attorney’s ignorance or inadvertence in a postconviction proceeding does not qualify as cause to excuse a procedural default, namely, that inadequate assistance of counsel at initial-review collateral proceedings may establish cause. Pp. 5–6.

(b) A federal court can hear Martinez’s ineffective-assistance claim only if he can establish cause to excuse the procedural default and prejudice from a violation of federal law. Coleman held that a postconviction attorney’s negligence “does not qualify as ‘cause,’ ” because “the attorney is the prisoner’s agent,” and “the principal bears the risk of” his agent’s negligent conduct, Maples v. Thomas, ante, at 12. However, in Coleman, counsel’s alleged error was on appeal from an initial-review collateral proceeding. Thus, his claims had been addressed by the state habeas trial court. This marks a key difference between initial-review collateral proceedings and other collateral proceedings. Here, where the initial-review collateral proceeding is the first designated proceeding for a prisoner to raise the ineffective-assistance claim, the collateral proceeding is the equivalent of a prisoner’s direct appeal as to that claim because the state habeas court decides the claim’s merits, no other court has addressed the claim, and defendants “are generally ill equipped to represent themselves” where they have no brief from counsel and no court opinion addressing their claim. Halbert v. Michigan, 545 U. S. 605, 617. An attorney’s errors during an appeal on direct review may provide cause to excuse a procedural default; for if the attorney appointed by the State is ineffective, the prisoner has been denied fair process and the opportunity to comply with the State’s procedures and obtain an adjudication on the merits of his claim. Without adequate representation in an initial-review collateral proceeding, a prisoner will have similar difficulties vindicating a substantial ineffective-assistance-at-trial claim. The same would be true if the State did not appoint an attorney for the initial-review collateral proceeding. A prisoner’s inability to present an ineffective-assistance claim is of particular concern because the right to effective trial counsel is a bedrock principle in this Nation’s justice system.

Allowing a federal habeas court to hear a claim of ineffective assistance at trial when an attorney’s errors (or an attorney’s absence) caused a procedural default in an initial-review collateral proceeding acknowledges, as an equitable matter, that a collateral proceeding, if undertaken with no counsel or ineffective counsel, may not have been sufficient to ensure that proper consideration was given to a substantial claim. It thus follows that, when a State requires a prisoner to raise a I claim of ineffective assistance at trial in a collateral proceeding, a prisoner may establish cause for a procedural default of such claim in two circumstances: where the state courts did not appoint counsel in the initial-review collateral proceeding for an ineffective-assistance-at-trial claim; and where appointed counsel in the initial-review collateral proceeding, where that claim should have been raised, was ineffective under Strickland v. Washington, 466 U. S. 668. To overcome the default, a prisoner must also demonstrate that the underlying ineffective-assistance-at-trial claim is substantial. Most jurisdictions have procedures to ensure counsel is appointed for substantial ineffective-assistance claims. It is likely that such attorneys are qualified to perform, and do perform, according to prevailing professional norms. And where that is so, States may enforce a procedural default in federal habeas proceedings. Pp. 6–12.

(c) This limited qualification to Coleman does not implicate stare decisis concerns. Coleman’s holding remains true except as to initial-review collateral proceedings for claims of ineffective assistance at trial. The holding in this case should not put a significant strain on state resources. A State facing the question of cause for an apparent default may answer that the ineffective-assistance-of-trial-counsel claim is insubstantial. The limited circumstances recognized here also reflect the importance of the right to effective assistance at trial. Other claims may not implicate the same fundamentals of the adversary system. The Antiterrorism and Effective Death Penalty Act of 1996 does not speak to the question presented here, and thus does not bar Martinez from asserting attorney error as cause for a procedural default. Pp. 12–14.

2. Whether Martinez’s attorney in his first collateral proceeding was ineffective and whether his ineffective-assistance-at-trial claim is substantial, as well as the question of prejudice, are questions that remain open for a decision on remand. P. 15.

623 F. 3d 731, reversed and remanded.

Kennedy, J., delivered the opinion of the Court, in which Roberts, C. J., and Ginsburg, Breyer, Alito, Sotomayor, and Kagan, JJ., joined. Scalia, J., filed a dissenting opinion, in which Thomas, J., joined.


Justice Kennedy delivered the opinion of the Court.

The State of Arizona does not permit a convicted person alleging ineffective assistance of trial counsel to raise that claim on direct review. Instead, the prisoner must bring the claim in state collateral proceedings. In the instant case, however, petitioner’s postconviction counsel did not raise the ineffective-assistance claim in the first collateral proceeding, and, indeed, filed a statement that, after reviewing the case, she found no meritorious claims helpful to petitioner. On federal habeas review, and with new counsel, petitioner sought to argue he had received ineffective assistance of counsel at trial and in the first phase of his state collateral proceeding. Because the state collateral proceeding was the first place to challenge his con- viction on grounds of ineffective assistance, petitioner maintained he had a constitutional right to an effective attorney in the collateral proceeding. While petitioner frames the question in this case as a constitutional one, a more narrow, but still dispositive, formulation is whether a federal habeas court may excuse a procedural default of an ineffective-assistance claim when the claim was not properly presented in state court due to an attorney’s errors in an initial-review collateral proceeding.


A jury convicted petitioner, Luis Mariano Martinez, of two counts of sexual conduct with a minor under the age of 15. The prosecution introduced a videotaped forensic interview with the victim, Martinez’s 11-year-old stepdaughter. It also put in evidence the victim’s nightgown, with traces of Martinez’s DNA. As part of his defense, Martinez introduced evidence of the victim’s recantations, including testimony from the victim’s grandmother and mother and a second videotaped interview in which the victim denied any abuse. The victim also denied any abuse when she testified at trial. App. To Pet. For Cert. 38a–39a. To explain the inconsistencies, a prosecution expert testified that recantations of child-abuse accusations are caused often by reluctance on the part of the victim’s mother to lend support to the child’s claims. Pet. For Cert. 3. After considering the conflicting evidence, the jury convicted Martinez. He was sentenced to two consecutive terms of life imprisonment with no possibility of parole for 35 years. App. To Pet. For Cert. 39a.

The State appointed a new attorney to represent Martinez in his direct appeal. Ibid.; Pet. For Cert. 4. She made numerous arguments on Martinez’s behalf, including a claim that the evidence was insufficient and that newly discovered evidence warranted a new trial. App. To Pet. For Cert. 39a. Arizona law, however, did not permit her to argue on direct appeal that trial counsel was ineffective. State v. Spreitz, 202 Ariz. 1, 3, 39 P. 3d 525, 527 (2002). Arizona instead requires claims of ineffective assistance at trial to be reserved for state collateral proceedings.

While Martinez’s direct appeal was pending, the attorney began a state collateral proceeding by filing a “Notice of Post-Conviction Relief.” Martinez v. Schriro, 623 F. 3d 731, 733–734 (CA9 2010); Ariz. Rule Crim. Proc. 32.4(a) (2011). Despite initiating this proceeding, counsel made no claim trial counsel was ineffective and later filed a statement asserting she could find no colorable claims at all. 623 F. 3d, at 734. Cf. State v. Smith, 184 Ariz. 456, 459, 910 P. 2d 1, 4 (1996).

The state trial court hearing the collateral proceeding gave Martinez 45 days to file a pro se petition in support of postconviction relief and to raise any claims he believed his counsel overlooked. 623 F. 3d, at 734; see Smith, supra, at 459, 910 P. 2d, at 4. Martinez did not respond. He later alleged that he was unaware of the ongoing collateral proceedings and that counsel failed to advise him of the need to file a pro se petition to preserve his rights. The state trial court dismissed the action for postconviction relief, in effect affirming counsel’s determination that Martinez had no meritorious claims. 623 F. 3d, at 734. The Arizona Court of Appeals affirmed Martinez’s conviction, and the Arizona Supreme Court denied review. Id., at 733.

About a year and a half later, Martinez, now represented by new counsel, filed a second notice of postconviction relief in the Arizona trial court. Id., at 734. Martinez claimed his trial counsel had been ineffective for failing to challenge the prosecution’s evidence. He argued, for example, that his trial counsel should have objected to the expert testimony explaining the victim’s recantations or should have called an expert witness in rebuttal. Martinez also faulted trial counsel for not pursuing an exculpatory explanation for the DNA on the nightgown. App. To Brief in Opposition B–6 to B–12. Martinez’s petition was dismissed, in part in reliance on an Arizona Rule barring relief on a claim that could have been raised in a previous collateral proceeding. Id., at B–27; see Ariz. Rule Crim. Proc. 32.2(a)(3). Martinez, the theory went, should have asserted the claims of ineffective assistance of trial counsel in his first notice for postconviction relief. The Arizona Court of Appeals agreed. It denied Martinez relief because he failed to raise his claims in the first collateral proceeding. 623 F. 3d, at 734. The Arizona Supreme Court declined to review Martinez’s appeal.

Martinez then sought relief in United States District Court for the District of Arizona, where he filed a petition for a writ of habeas corpus, again raising the ineffective-assistance-of-trial-counsel claims. Martinez acknowledged the state courts denied his claims by relying on a well-established state procedural rule, which, under the doctrine of procedural default, would prohibit a federal court from reaching the merits of the claims. See, e.g., Wainwright v. Sykes, 433 U. S. 72, 84–85, 90–91 (1977). He could overcome this hurdle to federal review, Martinez argued, because he had cause for the default: His first postconviction counsel was ineffective in failing to raise any claims in the first notice of postconviction relief and in failing to notify Martinez of her actions. See id., at 84–85.

On the Magistrate Judge’s recommendation, the District Court denied the petition, ruling that Arizona’s preclusion rule was an adequate and independent state-law ground to bar federal review. App. To Pet. For Cert. 36a. Martinez had not shown cause to excuse the procedural default, the District Court reasoned, because under Coleman v. Thompson, 501 U. S. 722, 753–754 (1991), an attorney’s errors in a postconviction proceeding do not qualify as cause for a default. See id., at 754–755.

The Court of Appeals for the Ninth Circuit affirmed. The Court of Appeals relied on general statements in Coleman that, absent a right to counsel in a collateral proceeding, an attorney’s errors in the proceeding do not establish cause for a procedural default. Expanding on the District Court’s opinion, the Court of Appeals, citing Coleman, noted the general rule that there is no constitutional right to counsel in collateral proceedings. 623 F. 3d, at 736. The Court of Appeals recognized that Coleman reserved ruling on whether there is “an exception” to this rule in those cases “where ‘state collateral review is the first place a prisoner can present a challenge to his conviction.’ ” 623 F. 3d, at 736 (quoting Coleman, supra, at 755). It concluded, nevertheless, that the controlling cases established no basis for the exception. Certiorari was granted. 563 U. S. ___ (2011).


Coleman v. Thompson, supra, left open, and the Court of Appeals in this case addressed, a question of constitutional law: whether a prisoner has a right to effective counsel in collateral proceedings which provide the first occasion to raise a claim of ineffective assistance at trial. These proceedings can be called, for purposes of this opinion, “initial-review collateral proceedings.” Coleman had sug- gested, though without holding, that the Constitution may require States to provide counsel in initial-review collateral proceedings because “in [these] cases . . . State collateral review is the first place a prisoner can present a challenge to his conviction.” Id., at 755. As Coleman noted, this makes the initial-review collateral proceeding a prisoner’s “one and only appeal” as to an ineffective-assistance claim, id., at 756 (emphasis deleted; internal quotation marks omitted), and this may justify an exception to the constitutional rule that there is no right to counsel in collateral proceedings. See id., at 755; Douglas

United States v. Palma

Hudson v. Hunt

United States v. Pupo

Darden v. Wainwright

Sibron v. New York

392 U.S. 40; 88 S. Ct. 1889; 20 L. Ed. 2d 917


No. 63 *

December 11-12, 1967, Argued

June 10, 1968, Decided

* Together with No. 74, John Francis Peters v. State of New York, argued on December 12, 1967, also on appeal from the same court.



DISPOSITION: No. 63, 18 N. Y. 2d 603, 219 N. E. 2d 196, reversed; No. 74, 18 N. Y. 2d 238, 219 N. E. 2d 595, affirmed.


In No. 63, a New York police officer on patrol observed during an eight-hour period a man (appellant Sibron), whom he did not know and had no information about, in conversation with six or eight persons whom the officer knew as narcotics addicts. Later the officer saw Sibron in a restaurant with three more known addicts. The officer on none of these occasions overheard any conversation or saw anything pass between Sibron and the others. Later the officer ordered Sibron outside the restaurant, where the officer said, "You know what I am after." When Sibron reached into his pocket the officer reached into the same pocket and found some envelopes containing heroin. Sibron was charged with the unlawful possession of the heroin. The trial court rejected Sibron's motion to suppress the heroin as illegally seized, holding that the officer had probable cause to make the arrest and to seize the heroin. Thereafter Sibron pleaded guilty, preserving his right to appeal the evidentiary ruling. Sibron, who was precluded from obtaining bail pending appeal, completed service of his six-month sentence roughly two months before it was physically possible for him to present his case on appeal. His conviction was affirmed by the intermediate state appellate court and then by the New York Court of Appeals. In this Court the State initially sought to justify the search on the basis of New York's "stop-and-frisk" law, N. Y. Code Crim. Proc. § 180-a, which the New York Court of Appeals apparently viewed as authorizing the search. That law provides that a "police officer may stop any person abroad in a public place whom he reasonably suspects is committing . . ." certain crimes "and may demand . . . his name, address and an explanation of his actions," and when the officer "suspects that he is in danger . . . he may search such person for a dangerous weapon." After this Court noted probable jurisdiction the county District Attorney confessed error. In No. 74, an officer, at home in the apartment where he had lived for 12 years, heard a noise at the door. Through the peephole he saw two strangers (appellant Peters and another) tiptoeing furtively about the hallway. He called the police, dressed, and armed himself with his service revolver. He observed the two still engaged in suspicious maneuvers and, believing that they were attempting a burglary, the officer pursued them, catching Peters by the collar in the apartment hallway. Peters said that he had been visiting a girl friend, whom he declined to identify. The officer patted Peters down for weapons and discovered a hard object which he thought might be a knife but which turned out to be a container with burglar's tools, for the possession of which Peters was later charged. The trial court denied Peters' motion to suppress that evidence, refusing to credit Peters' testimony that he had been visiting a girl friend and finding that the officer had the requisite "reasonable suspicion" under § 180-a to stop and question Peters and to "frisk" him for a dangerous weapon in the apartment hallway, which the court found was a "public place," within the meaning of the statute. Peters then pleaded guilty, preserving his right to appeal the rejection of his motion to suppress. The intermediate appellate court affirmed, as did the New York Court of Appeals, which held the search justified under § 180-a. The parties on both sides contend that the principal issue in both cases is the constitutionality of § 180-a "on its face." Held:

1. Sibron's completion of service of his sentence does not moot his appeal. Pp. 50-58.

(a) A State may not effectively deny a convict access to its appellate courts until his release and then argue that his case has been mooted by his failure to do what it has prevented him from doing. P. 52.

(b) Even though Sibron was a multiple offender he "had a substantial stake in the judgment of conviction which survives the satisfaction of the sentence imposed on him." Fiswick v. United States, 329 U.S. 211 (1946), followed; St. Pierre v. United States, 319 U.S. 41 (1943), qualified. Pp. 55-58.

2. A confession of error, though entitled to great weight, does not relieve this Court from making its own examination of the record of a case where a conviction has been erroneously obtained, particularly where a judgment of the State's highest court interpreting a state statute is challenged on constitutional grounds and the confession of error has been made by a local official rather than by an official authorized to speak for the State as a whole. Pp. 58-59.

3. Since the question in this Court is not whether the search (or seizure) was authorized by § 180-a, but whether it was reasonable under the Fourth Amendment, the Court does not pass upon the facial constitutionality of the statute. Pp. 59-62.

4. In No. 63, the heroin was illegally seized and therefore inadmissible in evidence. Pp. 62-66.

(a) The search of Sibron cannot be justified as incident to a lawful arrest since no probable cause existed before the search. Pp. 62-63.

(b) There were no adequate grounds for the officer to search Sibron for weapons since the officer had no reason to believe that Sibron was armed and dangerous; and even if there arguably had been such a justification, there was no initial limited exploration for arms before the officer thrust his hand into Sibron's pocket. Terry v. Ohio, ante, p. 1, distinguished. Pp. 63-65.

5. In No. 74, the search was reasonable and the evidence seized was admissible. Pp. 66-67.

(a) The search of Peters was incident to a lawful arrest under the Fourth Amendment. Pp. 66-67.

(b) The "arrest" of Peters had taken place before the search, and after the arrest the officer had authority to search Peters. P. 67.

(c) The incident search, which was limited in scope, was justified by the need to seize weapons as well as the need to prevent destruction of evidence of the crime. P. 67.

COUNSEL: Kalman Finkel and Gretchen White Oberman argued the cause and filed briefs for appellant in No. 63. Robert Stuart Friedman argued the cause and filed a brief for appellant in No. 74.

William I. Siegel argued the cause for appellee in No. 63. With him on the brief was Aaron E. Koota. James J. Duggan argued the cause for appellee in No. 74. With him on the briefs was Leonard Rubenfeld.

Michael Juviler argued the cause for the District Attorney of New York County, as amicus curiae, in No. 63. With him on the brief filed in both cases were Frank S. Hogan and H. Richard Uviller. Mr. Siegel argued the cause for the District Attorney of Kings County, as amicus curiae, in No. 74.

Briefs of amici curiae, urging reversal in both cases, were filed by Jack Greenberg, James M. Nabrit III, Michael Meltsner, Melvyn Zarr, and Anthony G. Amsterdam for the NAACP Legal Defense and Educational Fund, Inc., and by Bernard A. Berkman, Melvin L. Wulf, and Alan H. Levine for the American Civil Liberties Union et al.

Louis J. Lefkowitz, pro se, Samuel A. Hirshowitz, First Assistant Attorney General, and Maria L. Marcus and Brenda Soloff, Assistant Attorneys General, filed a brief for the Attorney General of New York, as amicus curiae, urging affirmance in both cases.

JUDGES: Warren, Black Douglas, Harlan, Brennan, Stewart, White, Fortas, Marshall

OPINION: [*43] [***923] [**1892] MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.

These are companion cases to No. 67, Terry v. Ohio, ante, p. 1, decided today. They present related questions under the Fourth and Fourteenth Amendments, but the cases arise in the context of New York's "stop-and-frisk" law, N. Y. Code Crim. Proc. § 180-a. This statute provides:

"1. A police officer may stop any person abroad in a public place whom he reasonably suspects is committing, has committed or is about to commit a [**1893] felony or any of the offenses specified in section five hundred fifty-two of this chapter, [***924] and may demand of him his name, address and an explanation of his actions.

"2. When a police officer has stopped a person for questioning pursuant to this section and reasonably [*44] suspects that he is in danger of life or limb, he may search such person for a dangerous weapon. If the police officer finds such a weapon or any other thing the possession of which may constitute a crime, he may take and keep it until the completion of the questioning, at which time he shall either return it, if lawfully possessed, or arrest such person."

The appellants, Sibron and Peters, were both convicted of crimes in New York state courts on the basis of evidence seized from their persons by police officers. The Court of Appeals of New York held that the evidence was properly admitted, on the ground that the searches which uncovered it were authorized by the statute. People v. Sibron, 18 N. Y. 2d 603, 219 N. E. 2d 196, 272 N. Y. S. 2d 374 (1966) (memorandum); People v. Peters, 18 N. Y. 2d 238, 219 N. E. 2d 595, 273 N. Y. S. 2d 217 (1966). Sibron and Peters have appealed their convictions to this Court, claiming that § 180-a is unconstitutional on its face and as construed and applied, because the searches and seizures which it was held to have authorized violated their rights under the Fourth Amendment, made applicable to the States by the Fourteenth. Mapp v. Ohio, 367 U.S. 643 (1961). We noted probable jurisdiction, 386 U.S. 954 (1967); 386 U.S. 980 (1967), and consolidated the two cases for argument with No. 67.

The facts in these cases may be stated briefly. Sibron, the appellant in No. 63, was convicted of the unlawful possession of heroin. n1 He moved before trial to suppress [*45] the heroin seized from his person by the arresting officer, Brooklyn Patrolman Anthony Martin. After the trial court denied his motion, Sibron pleaded guilty to the charge, preserving his right to appeal the evidentiary ruling. n2 At the hearing on the motion to suppress, Officer Martin testified that while he was patrolling his beat in uniform on March 9, 1965, he observed Sibron "continually from the hours of 4:00 P. M. to 12:00, midnight . . . in the vicinity of 742 Broadway. " He stated that during this period of time he saw Sibron in conversation with six or eight persons whom he (Patrolman Martin) knew from past experience to be narcotics addicts. The officer testified that he did not overhear any of these conversations, and that he did not see anything pass between Sibron and any of the others. Late in the evening Sibron entered a restaurant. Patrolman Martin saw Sibron speak with three [***925] more known addicts inside the restaurant. Once again, nothing was overheard and nothing was seen to pass between Sibron and the addicts. Sibron sat down and ordered pie and coffee, and, as he was eating, [**1894] Patrolman Martin approached him and told him to come outside. Once outside, the officer said to Sibron, "You know what I am after." According to the officer, Sibron "mumbled something and reached into his pocket." Simultaneously, Patrolman Martin thrust his hand into the same pocket, discovering several glassine envelopes, which, it turned out, contained heroin.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n1 N. Y. Pub. Health Law § 3305 makes the unauthorized possession of any narcotic drug unlawful, and §§ 1751 and 1751-a of the N. Y. Penal Law of 1909, then in effect, made the grade of the offense depend upon the amount of the drugs found in the possession of the defendant. The complaint in this case originally charged a felony, but the trial court granted the prosecutor's motion to reduce the charge on the ground that "the Laboratory report will indicate a misdemeanor charge." Sibron was convicted of a misdemeanor and sentenced to six months in jail.

n2 N. Y. Code Crim. Proc. § 813-c provides that an order denying a motion to suppress evidence in a criminal case "may be reviewed on appeal from a judgment of conviction notwithstanding the fact that such judgment of conviction is predicated upon a plea of guilty."

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

The State has had some difficulty in settling upon a [*46] theory for the admissibility of these envelopes of heroin. In his sworn complaint Patrolman Martin stated:

"As the officer approached the defendant, the latter being in the direction of the officer and seeing him, he did put his hand in his left jacket pocket and pulled out a tinfoil envelope and did attempt to throw same to the ground. The officer never losing sight of the said envelope seized it from the def[endan]t's left hand, examined it and found it to contain ten glascine [sic] envelopes with a white substance alleged to be Heroin."

This version of the encounter, however, bears very little resemblance to Patrolman Martin's testimony at the hearing on the motion to suppress. In fact, he discarded the abandonment theory at the hearing. n3 Nor did the officer ever seriously suggest that he was in fear of bodily harm and that he searched Sibron in self-protection to find weapons. n4

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n3 Patrolman Martin stated several times that he put his hand into Sibron's pocket and seized the heroin before Sibron had any opportunity to remove his own hand from the pocket. The trial court questioned him on this point:

"Q. Would you say at that time that he reached into his pocket and handed the packets to you? Is that what he did or did he drop the packets?

"A. He did not drop them. I do not know what his intentions were. He pushed his hand into his pocket.

"MR. JOSEPH [Prosecutor]: You intercepted it; didn't you, Officer?

"THE WITNESS: Yes." (Emphasis added.)

It is of course highly unlikely that Sibron, facing the officer at such close quarters, would have tried to remove the heroin from his pocket and throw it to the ground in the hope that he could escape responsibility for it.

n4 The possibility that Sibron, who never, so far as appears from the record, offered any resistance, might have posed a danger to Patrolman Martin's safety was never even discussed as a potential justification for the search. The only mention of weapons by the officer in his entire testimony came in response to a leading question by Sibron's counsel, when Martin stated that he "thought he [Sibron] might have been" reaching for a gun. Even so, Patrolman Martin did not accept this suggestion by the opposition regarding the reason for his action; the discussion continued upon the plain premise that he had been looking for narcotics all the time.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

[*47] The prosecutor's theory at the hearing was that Patrolman Martin had probable cause to believe that Sibron was in possession of narcotics because he had seen him conversing with a number of known addicts over an eight-hour period. In the absence of any knowledge on Patrolman Martin's part concerning the nature of the intercourse between Sibron and the addicts, however, the trial court was inclined to grant the motion to suppress. As the judge stated, "All he knows about the unknown men: They are narcotics addicts. They might have been talking about the World Series. They might have been talking about prize fights." The prosecutor, however, reminded the judge that Sibron had admitted [***926] on the stand, in Patrolman Martin's absence, that he had been talking to the addicts about narcotics. Thereupon, the trial judge changed his mind and ruled that the officer had probable cause for an arrest.

Section 180-a, the "stop-and-frisk" statute, was not mentioned at any point



CLN Subscribe Now Ad 450x600
CLN Subscribe Now Ad
Disciplinary Self-Help Litigation Manual - Side